Category Archives: Intergovernmental relations

This post is about whether Brexit requires legislative consent from the devolved legislatures, particularly the Scottish Parliament, and what that consent relates to – whether the whole process of Brexit, or only aspects of it. It argues that the English and Welsh High Court’s judgment in the Miller case ([2016] EWHC 2768 (Admin)) on the use of prerogative powers alters the position significantly, and that the implication of that judgment is that the consent of at least the Scottish Parliament is needed for the triggering of Article 50. Whether that will be the case depends, of course, on what the UK Supreme Court has to say when it comes to give its ruling on the issue early next year.

Legislation which affects devolved functions requires consent – by convention for Northern Ireland and Wales (until the current Wales bill comes into effect), and by statute for Scotland. (One might call this the ‘policy arm’ of the convention.)

Changes which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers also require legislative consent, by convention. That applies whether the change removes functions from the devolved legislature or executive, or confers new functions on either of them. (This can be called the ‘constitutional arm’ of the convention.).

As a convention, it is not justiciable before the courts – but the statutory arm of it is. Otherwise, the UK Parliament remains sovereign, something explicitly stated in all the principal devolution Acts.

(So far as Scotland is concerned, the key text is Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland, available here. Although that is an internal document of the UK Government and has not been revised since 2005, it was in fact agreed between the two governments.)

Working out whether the convention applies in its policy arm is easy enough conceptually, but rather harder in practice. The test is whether the Westminster legislation would be within the competence of the devolved legislature if it were tabled for consideration there. If the legislation could be passed by the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly, it requires their legislative consent. (As it can be hard identifying the boundaries of competence of the National Assembly for Wales, it can be particularly difficult applying that test there.) Ultimately, as this arm of Sewel is now statutory for Scotland, this is a matter for the courts.

We do not, of course, know what form the UK legislation to enact Brexit will take. Depending on the Supreme Court’s view, it may involve Parliamentary approval for the triggering of Article 50, which if needed is likely to be an Act rather than a resolution (to put the question beyond doubt). Theresa May has said that subsequently there will be a ‘Great Repeal Bill’ to transpose existing EU obligations into domestic law and replace the European Communities Act 1972. There may need to be further post-Brexit legislation as well.

Arguments about whether legislative consent is needed for Brexit therefore appear to rest on the constitutional arm. Here, there seem to be two arguments. First, that Brexit affects devolved functions which are subject to heavy EU influence – which includes most devolved functions, but with agriculture, fisheries and the environment at the top of the list. They are not reserved, but the devolved government and parliament are subject to the general requirements to comply with EU law. The argument seems to be that these functions would be changed by Brexit, and consent to that is needed. That argument makes the assumption that there would be some sort of UK-wide policy for them once the UK leaves the EU. Indeed, at least some from the SNP has been keen to call for that not to be the case, and control of these areas to be left wholly to the Scottish Parliament. If the UK Government were to agree (and there are good policy reasons why it might – it will have enough to do with implementing Brexit on top of adding a UK framework for these policy areas), that argument falls away. By agreeing to allow these policy areas to be devolved, there is no change to devolved functions so no need for legislative consent. Ironically, demands to enhance the devolved legislatures’ powers in one respect undermine their claim to need to consent to UK-wide changes in another. If the UK Government were to make a clear official statement on this (and the Scottish Secretary has already suggested this), the matter would be resolved beyond doubt.

The second reason why devolved legislative consent might be needed is because it will involve changes to the text of the devolution legislation. (See, for example, Sionaidh Douglas-Scott here.) Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland makes it clear that

provisions which either do not apply to Scotland at all, or which do apply there but relate to reserved matters under the Scotland Act 1998,

or provisions which apply to Scotland and relate to reserved matters, but also make incidental or consequential changes to Scots law on non-reserved matters

do not need legislative consent. This does not provide that any change to the text of the Scotland Acts requires legislative consent – only when that legislation changes the legislative competence of the Parliament or the executive competence of the Scottish Ministers. It relates to substantive effect, not form, and not to incidental or consequential changes relating to reserved matters. And the significance of those changes depends on whether the UK Government seeks to legislate for a reserved matter – determined ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’ (section29(3)). Legislation to give effect to Brexit clearly relates to a reserved matter.

There is a secondary aspect to this. Douglas-Scott makes the argument that changing the Scotland Act 1998 to remove references to EU obligations would be needed. (The key ones are section 29(2)(d) and section 54(2)). Those references would be constitutionally and politically superfluous, but (at least arguably) binding if they remained in the text of the Act. If correct, that would require Scotland still to comply with EU obligations after the UK as a whole left the EU, so far as devolved (non-reserved) matters were concerned. That would be a highly complex and even perverse outcome. However, this view would seem to be legally mistaken. The Scotland Act 1998 (as amended) defines EU law as ‘(a) all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties’ (section 126(9)). It does not define ‘EU Treaties’. The statutory definition of those is in section 1(2) European Communities Act 1972 (which is one of the ‘protected provisions’ that only Westminster and not Holyrood can change). If this is repealed through the Great Repeal Bill, references to EU law in the Scotland Act 1998 become meaningless; they would refer to nothing that has legal effects within the UK. Even if legislative consent were needed for that change, which is unlikely since it concerns a protected provision, the only legal effect of withholding it would be to leave irrelevant clutter in the Scotland Act, not the perverse outcome of the Scottish Parliament being bound to apply EU law when Westminster was not. Removing those obligations – which only Westminster can do – would simply tidy up the Scotland Act 1998, to Holyrood’s advantage.

On this basis, it would be hard to avoid concluding that devolved legislative consent for Brexit is not needed, at least so far as Scotland is concerned. (The technicalities of consent are different for Wales, but the same conclusion would appear to be the case there. The position for Northern Ireland is much more complicated because of the provisions of the Belfast Agreement and the way that affects the Northern Ireland Act 1998.) However, that was before the England and Wales High Court gave its ruling in the Miller case on the use of prerogative powers to invoke Article 50 of the Treaty on European Union for the UK’s departure. What is important here is not so much the Divisional Court’s ruling that this action required Parliamentary approval, but its reasoning. The key element of the court’s argument was that, as the Article 50 notice would be irrevocable, it would start a process of leaving the EU that could not be stopped, and the effect of that process would be to remove various rights arising from EU membership. Those are not simply the rights linked to EU citizenship, but appear to be considerably broader. The UK Parliament alone could agree to the removal of such rights, applying long-established principles and rules of British constitutional law.

There are reasons why lawyers disagree with the Divisional Court’s ruling (such as Professor Adam Tomkins MSP here), though most agree with it (see, for example, posts on the UK Constitutional Law Association’s blog here). In any event, the Supreme Court may not agree with the Divisional Court. But the reasoning about the connection between EU membership and individual rights changes the position regarding legislative consent for Scotland considerably. That applies even if the Supreme Court were to reach a similar conclusion by a different route, without over-ruling the Divisional Court on this issue. For Scotland at least, ‘rights’ including human rights are not a reserved matter. The Human Rights Act 1998, and the Convention rights it enacts, are provisions protected from alteration by the Scottish Parliament, but rights more widely are not. If Westminster were to interfere with such rights, that does affect a matter within the competence of the Scottish Parliament – which is the test for deciding whether legislative consent is needed under the policy arm of the Sewel convention. As it affects a devolved matter, it is statutory and that also means it is justiciable by the UK Supreme Court. Moreover, as this is a constitutional provision so far as the UK is concerned, the requirement needs to be satisfied for the Article 50 notice to be valid (since that must comply with the notice-giving member state’s ‘own constitutional requirements’).

The Supreme Court needs to address this question, as if it is left hanging it will only lead to further legal uncertainty (and litigation, and delay) in the process of Brexit, or yet more political grandstanding with little legal or constitutional foundation. Only if leaving the EU were not to affect ‘rights’ could the requirement for legislative consent be dispensed with. It is yet more evidence, if evidence were needed, that the path to the UK leaving the EU is a long, complex, twisting and messy one.

UPDATE: It is worth noting that this post was written before the UK Supreme Court ruled in the Miller case. While its 8-3 majority judgment upheld the need for the UK Parliament to give its consent to the issuing of an Article 50 notice (done by the European Union (Notification of Withdrawal) Act 2017), it approached the issue in a different way. In essence, rather than taking the novel ‘rights-based’ approach that the Divisional Court had, it looked at the question in a more traditional way rooted in the doctrine of the separation of powers.

This has significant impact for the need for devolved legislative consent. The question of rights brought (at least to my mind) the bill within the scope of the Sewel convention. The different approach taken by the Supreme Court means it did not. On that basis, not only was it right for the UK Parliament to proceed to pass the Article 50 bill without devolved legislative consent, but there was no constitutional foundation for the Scottish Parliament to debate a legislative consent memorandum on the bill (and withhold its consent).

The question of whether further bills related to Brexit might need legislative consent is, however, still an open one. We have not yet seen any of those bills, of course. The ‘great repeal bill’ to transpose EU law and obligations into domestic law would appear unlikely to in principle. Other bills may well have sufficient effect on devolved functions as to bring them within the scope of the convention.

The Supreme Court’s judgment provides the most detailed and authoritative legal discussion of the Sewel convention, and is well worth reading on that account. It dismisses the idea that putting the Sewel convention on a statutory footing makes it legally binding, and that it remains a political convention that cannot be enforced by the courts. I respectfully disagree with their view; why was it put into statute if not meant to be binding? I cannot think of any other case of a non-enforceable convention that is in statute. However, as the Supreme Court has taken the view that it is not legally enforceable, that now has to be understood as the law.

In all the discussions about tax devolution for all parts of the UK, a key issue has not been clarified. That issue is how to reduce block grants when a tax is devolved. Indeed there still appears to be no general agreement between the devolved governments and the UK Government about how to proceed. It is a particularly knotty question in discussions about income tax but also VAT and it has the capacity to delay devolution to Scotland and to stall it altogether for Wales.

There is little problem in the first year of devolution. An estimate can be made of the revenue foregone by the Westminster government, given prevailing tax rates, and that can be deducted from the block grant. Subsequently the deduction can be revised when actual revenues differ from the estimate. The difficulty comes for subsequent years when the deduction must be expected to grow with the economy and its tax base but must not be affected by changes in tax rates by the devolved administration – otherwise devolution of tax powers is not real.

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK Government (and other governments) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘scale up’ intergovernmental co-ordination as part of the package of further devolution.

The UK Government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed that to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee. Plenary meetings of that ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, but with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures, and many important issues slip through the net.

Friday’s news had ample coverage of the UK Government’s decision about financing Welsh devolved government, following the Silk Commission’s Part 1 report from last November. No doubt the looming anniversary of the publication of the Silk report triggered a certain sense of urgency. Despite promises that the UK Government would produce its response in ‘the spring’ (and strong hints this would be earlier in the spring rather than later), that has been delayed and delayed. At the end of June, Secretary of State David Jones said it had been postponed until after the summer, and now pretty late in the autumn it has finally materialised.

There has been wide coverage of the UK response. The Western Mail’s article by David Cameron and Nick Clegg is here, and their news coverage is here, here and here. BBC News coverage is here, and analysis here. The Guardian’s story is here. The official Wales Office press release is here, and the written ministerial statement is here.

The approach for dealing with the reduction in the block grant recommended by the Silk Commission sounds comparatively straightforward in principle, though it is rather harder to apply in practice. In the first year the new arrangements are in operation, the block grant is cut by an amount corresponding to the yield of the devolved tax ‘space’ – 10 points of personal income tax in the case of Silk (and Calman/Scotland Act 2012) for Scotland. That cut is then adjusted ‘proportionately’ in subsequent years. What ‘proportionately’ means here is not clear. The Holtham Commission did sterling work in identifying what that might mean in practical terms, recommending what it called the ‘indexed deduction’ approach for personal income tax. The same approach applies in principle to other devolved taxes, but the yields of those are modest so the issue is not so vital there.

The ‘indexed deduction’ method would involve taking the Welsh proportion of the overall UK revenues from that tax, and reducing the block grant by that proportion. So, if devolved income tax in Wales generates 1.75 per cent of total UK personal income tax revenues in year one, the reduction in the block grant would be 1.75 per cent of UK personal income tax in each subsequent year – whatever the change in overall UK personal income tax revenues. The amount of the deduction would go down if overall tax revenues went down, and be increased if revenues went up. The result would be that the Welsh Government would gain if its use of its powers increased tax revenues in Wales ahead of the UK as a whole, and lose out if they declined more than the UK as a whole. This approach has been agreed between the UK and Scottish Governments for the working of the Scotland Act 2012, but work on what it means in practice is ongoing in the ‘Joint Exchequer Committee’ established by the two governments. There has still not been any published attempt to show what the impact of making the cut and adjusting it by that method would be.

Applying the ‘indexed deduction’ method is comparatively easy for Scotland. The Barnett formula means that the Scottish block grant is comparatively generous. One can argue about how generous it is, but it is clear that the Scottish Government’s block grant exceeds by some distance any reasonable estimate of Scottish relative needs. Holtham estimated Scottish needs at 104 or 105 per cent of English ones, but depending on how one cuts the numbers (which is tricky) Scotland gets around 118-120 per cent of English spending for services covered by the block grant.

A further quirk is that the public spending boom of the 2,000s should have led to quite rapid convergence in devolved spending on the ‘English’ level – but, for Scotland, it did not. It appears that Scotland’s declining population cancelled out the convergence effect in the block grant, since convergence relates to per capita levels of spending, while the block itself is calculated as a lump sum and updated population numbers only affect incremental changes to that. So if the application of the reduction in the block grant affects the overall resources available to Scotland, it will only eat into that ‘cushion’ of the Barnett bonus – and it will not make a difficult situation significantly worse as time goes by.

Wales would love to have Scotland’s problems. It is clear that Wales is somewhat ‘underfunded’ given its present relative needs. At present, the block grant provides 113 per cent of the English level of spending on devolved services – while Holtham found Wales’s relative needs were between 114 and 117 per cent. That creates a different set of difficulties. If the block grant fails to produce a ‘fair’ level of funding relative to need at the outset, any cut in that grant – however it is adjusted – will probably make matters worse, as convergence happens. As a result, it becomes very hard to reconcile devolved fiscal accountability with reasonable UK-wide equity in public spending.

Matters needs not necessarily get worse, if the grant were adjusted to compensate for unfairness in funding before any reduction is made to allow for devolved income tax. The demand for a ‘fair’, needs-based grant – as articulated by Holtham – would be the simplest and most effective way of doing that. But a needs-based grant looks to be pretty clearly off the cards at present. The effects of introducing that for Scotland, particularly in the run-up to the 2014 independence referendum, are frightening enough to send politicians running in the opposite direction.

How this would be resolved if or when convergence comes back on the agenda would involve a good deal of bargaining and haggling between the Treasury and Welsh Government, and a good deal of reliance on subjective assessments. Although the Welsh Government seems to have a good deal of confidence in that deal, it is not so much a sticking plaster to help a broken leg, as a fig leaf.

Even then, a ‘fair’ grant would need an adjustment mechanism. You would need to be able to adjust the Welsh block (before the deduction for the share of devolved income tax) as spending changes in the reference point – so Wales gets a consequential change as spending on health or transport in England goes up (or down). The simplest adjustment mechanism is that used for Barnett – allocating a population share of changes in spending on ‘comparable functions’ in England. But any formula that works in that way will have a convergence element built into it. So the problems caused by the Welsh block grant falling below Welsh relative need will not go away.

Indeed, it is made worse because the devolved tax power transfers a degree of volatility risk to the devolved level, while devolved public services are counter-cyclical or inflationary in their cost. A devolved government needs to know as accurately as it can how much money it will have for those services, and the starting point for that figure must deliver a comparable level of spending to that in England. The more subjective the mechanism for adjusting the numbers, the less certainty and accuracy there is in the system.

Each of these problems is capable of being fixed. It would be quite possible to build into the mechanism for implementing Silk an adjustment to the block grant to avoid convergence, and another to cut the block grant to allow for partially devolved income tax. It would even be possible to establish a system that was also robust and predictable, and pretty stable, though HM Treasury would probably baulk at the loss of control over spending policy that would entail.

But the problem is that such mechanisms will need to be applied by the Treasury, and run on Treasury estimates which will necessarily have an element of subjective estimation built into them. By contrast, the day to day, year to year, operation of Barnett is pretty automatic and clear. The most serious problems arise when it is changed at a spending review. So ironically, there is a real prospect that the overall effect of devolving income tax while making sure other changes do not damage Wales financially will increase the extent to which Welsh public spending depends on HM Treasury’s calculations, not reduce it. Ensuring a measure of fairness may mean less clarity about how financing works.

And that is the real problem. The goal of the Silk recommendations is to increase the National Assembly and Welsh Government’s ‘fiscal accountability’. That means establishing clear lines between what is a devolved responsibility and what is a UK responsibility. There is little point in voters being able to hold the Assembly to account for increased (or reduced) income tax if there can then be arguments that this only happened because the Treasury has allowed it. That would not add to accountability. In fact, by creating scope for extra arguments between governments and blame-shifting, it would reduce it.

There are two points here that require further consideration. The first is that the detail of any response implementing Silk needs to be looked at carefully, to see how that mechanism will work. Steering a course that delivers the benefits of Silk – in the form of increased autonomy and accountability – is difficult, and UK Government claims of success should be treated with scepticism given the difficulties of delivering these objectives.

Second, one has to ask how long the financial system for devolution can go on being amended and patched in this way. It is increasingly looking like one of Heath Robinson’s strange jerry-rigged machines, and increasingly incapable of actually doing what is demanded of it. These problems are much worse for Wales than for Scotland, but Scotland has them too. What look like bolder approaches – such as my proposals set out as part of the IPPR’s ‘Devo More’ project – in fact resolve them much more effectively, by trying to start with a clean slate rather than perpetuating the mess that has accumulated over decades. At some point, clarity and comprehensibility need to take priority over political or administrative convenience.

As part of that, the Treasury needs to be asked a hard question: why does the same framework for financing arrangements have to apply to Wales as to Scotland and Northern Ireland? While almost every part of the three sets of devolution arrangements varies a good deal, the Treasury has insisted on a measure of symmetricality in the block grant and the Barnett formula. It is rather a superficial form of symmetry, as when one digs down there are many substantial differences between each country’s arrangements. At present it is Wales alone that is underfunded relative to need by the block grant, and therefore only Wales that is exposed to the acute problems of convergence on an English level of public spending. Symmetry causes problems for Wales in a way that it does not for Scotland or Northern Ireland.

In his recent speech at the Wales Governance Centre in Cardiff, Welsh Secretary David Jones lauded the virtues of ‘asymmetric devolution’. Asymmetry when it comes to the operation of financing would have a direct and tangible value for Wales. It will be interesting to see whether that was merely an attempt to defend a messy status quo, or a preparatory step for an imaginative deal to make fiscal devolution for Wales work.

Inheritance tax (IHT to its friends) is an odd tax. It doesn’t raise a lot of money; £2.7 billion in 2010-11 according to HM Revenue and Customs, which sounds like a lot of money but was only 0.65 per cent of total UK tax revenues. It also has plenty of loopholes. The most important are the seven-year rule (it doesn’t catch anything given away more than seven years before the death of the donor), an exemption on transfers between spouses, and the nil-rate band which taxes at 0 per cent anything up to a specified threshold, currently £325,000 per individual. The combination of the seven-year rule and the nil-rate band mean that it’s largely an optional tax, hitting the well- and comfortably-off who are disorganised; indeed, the joke in tax classes is that it’s a charge on those who hate their relations more than the Revenue.

So – if the news that IHT is to bear the burden of increasing resources to pay for the new ‘social care cap’ in England is right (see BBC News here, and Sunday’s Telegraph here) – the upshot is rather confusing. An additional tax burden will be imposed on residents of all parts of the UK, including Scotland, Wales and Northern Ireland as well as England – to pay for a benefit only to be experienced in England. That is anomalous.

There are two ways to resolve this problem. One is to allocate shares of the extra tax revenues so generated to devolved governments in Scotland, Wales and Northern Ireland, since social care for the elderly is a devolved function. That is attractive, and would be the sort of approach sought by Quebec, where the long-standing demand of the provincial government has been to call for an ‘opt out with compensation’ from expansions of the Canadian federal government’s social programmes. However, that might not be in devolved governments’ best interests – the tax base that supports inheritance tax revenues is driven by property values, and so hugely skewed toward southern England. (In Scotland, according to GERS, it only generated 0.4 per cent of total tax revenues in 2010-11. It’s only 0.37 per cent in Wales according to the Silk Commission report, and 0.33 per cent in Northern Ireland, according to the Northern Ireland Net Fiscal Balance Report.) Getting those extra tax revenues from the tax base in Scotland, Wales or Northern Ireland would in fact mean a larger share of a smaller cake. That’s all the worse for Scotland and Northern Ireland given their ageing populations.

The alternative approach would be to let the Barnett formula take the strain, and allocate to devolved governments their consequential share of increased UK Government spending in England. This is what Barnett is meant to do, after all – allocate consequential shares of spending on ‘comparable’ functions in England to devolved governments. It appears that the increased IHT revenue will only bear part of the cost of increasing resources for the care cap, so the rest will presumably come from general taxation anyway. Using Barnett would in fact put rather more funds into the hands of devolved governments, albeit at the expense of English taxpayers, but in a way that accomplishes a form of equity in distributing shares of the cost of the English policy across the UK.

If the latter is the approach to be taken, it should form part of the Department of Health’s formal announcement. The pre-announcement briefings have suggested a UK-wide tax to fund a purely English policy, which may make electoral sense for the Conservatives but not much constitutional sense (and that’s without judging whether this policy approach is in fact right or not – given that it has been criticised by Andrew Dilnot as well as Labour spokespeople). It looks rather like the sort of high-handed approach from Whitehall that has been all too common in the past – and which in the present context strengthens arguments for independence in Scotland. (Of course, it also sits on top of the UK Government’s exclusion of claims for attendance allowance from beneficiaries of that policy after free long-term care for the elderly was introduced.) It also suggests that a more nuanced approach to welfare devolution may be hard to implement, because doing so is beyond Whitehall’s habitual ways of working.

What this is not is a case for devolving inheritance tax. IHT is one of few taxes emphatically not suitable for devolution on fiscal grounds. Experience in both Canada and Australia of transferring the death/estates duty tax base to the provinces/states was that within a decade, tax competition between the various governments drove the rate of tax to zero across the whole country. There are few cases where the evidence of fiscal competition cannibalising a tax base is so clear.

Thinking about social care costs is actually a tricky challenge. It involves redistribution across time as well as space. At present, devolved governments have the responsibility for providing care, but not the policy or legal instruments to secure its funding. The way the UK Government has ploughed ahead making policy for England with so little regard for the position of devolved governments has done it few favours.

UPDATE: This post was written just before Jeremy Hunt made his statement in the Commons (which is available here) or the Department of Health published its white paper Caring For Our Future: Reforming care and support, Cm 8378 (available here). There’s no mention in the white paper of the use of changes in inheritance tax (or NICs transferred from the soon-to-be-discontinued second state pension) to fund the new policy. Indeed, for that matter there’s no mention of devolved governments or institutions at all.

Yet the white paper notes, without irony, ‘Fragmented health, housing, care and support are letting people down. A failure to join up also means that taxpayers’ money is not used as effectively as possible, and can lead to increased costs for the NHS’ (p. 16). Moreover, the DH statement says, ‘A national minimum eligibility will make access to care more consistent around the country, and carers will have a legal right to an assessment for care for the first time.’ All that is true, but applies as much to policy across the UK as that within England. When directly asked about the devolution implications in the Commons, by Willie McCrea from South Antrim, Hunt stalled, saying ‘different approaches are being tried in all four constituent parts of the United Kingdom and we must look at what is happening in the different parts and all learn from each other.’

The UK Government has set out a policy only for England, which affects devolved governments and their policy functions quite significantly – but without there being any apparent assessment of its impact on them, or the fact that the UK Government possesses and is using policy levers that are not available to them despite their similar responsibilities. This is simply confused policy-making; and the fact that the financing was discussed in the press and Commons statement, but does not appear in the published documents, suggests it was made rather late in the day too.

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